Time for Transparency on the Temporary Foreign Worker Program

The mighty Royal Bank is in trouble this morning because their plan leaked to the public.
That plan is to use their own long service employees to train their replacement from a firm to whom RBC has contracted out the jobs. Here is the CBC story.
Canadian companies have a long history of contracting out jobs to cheaper foreign companies, and there’s nothing unlawful in doing that. It’s more unusual for a company to ask its own employees to train their replacements. Again, nothing illegal in this. It’s just terrible HRM, and when the story gets to the media, terrible PR. Just ask RBC, which today is in full damage control.
Most interesting to us law folks is the discovery in this story that somehow the Indian workers who are being trained were brought into Canada under the Temporary Foreign Workers’ Program. This is the program our Federal government implemented to allow Canadian employers to bring in foreign workers to fill vacancies at lower wages than would be required to attract Canadian workers.I’ve explained before how the program conflicts with the Conservative party’s mantra that working conditions should be set by free market forces. In the ECO 101 textbooks, we are told that when an employer can’t attract workers for $15 per hour, then they need to raise the wage rate to $20 per hour. If they can’t find trained workers, then they need to provide training, the cost of which is adjusted into the wage rate or the price of their products. This the normal operation of market forces. The TFWP turns this on its head. It says to employers, if you can’t find workers at $15 per hour, rather than offer a higher wage rate and better working conditions, the government will allow you to bring in foreign workers who will work. Oh, and the Conservatives recently changed the rules to allow those workers to be paid 15% less than market rates. Even better, you don’t need to train Canadian workers. No matter that there are tens of thousands of unemployed Canadians.
Market forces are good for the Conservatives when they work to keep wages low; not so much when they drive labour costs up. Under the Conservative watch, the number of TFW has increased from about 89,000 to over 300,000! The TFWP is the Tories’ greatest job creation initiative. Unfortunately, it is not Canadian citizens getting the jobs. [See this very useful summary of the TFWP by Jason Foster]
The TFWP is supposed to deal with an extraordinary situation in which a company has advertised for jobs, and yet has received no qualified applications from resident Canadians. Since it is not possible to fill vacancies with Canadians, the Program permits employers to bring in foreign workers on a temporary basis to fill the vacancy. You explain to me how under this program workers could be brought in to be trained for a job already being done by Canadians? Maybe there is more to the story, since it seems unfathomable that a government official could find this situation qualifies under the TFWP.Enough Already: Time for a Transparent Adjudicative Process
There is a strong argument that the TFWP should be abolished completely, and that workers brought in to fill skills shortages in Canada should be granted permanent citizenship. I agree with that sentiment. However, the Conservatives are so enamoured with letting employers bring in cheap foreign labour, I don’t see that happening.
However, if the program is to continue, then it needs to change. Even the Tories seem to concede as much, since many of their supporters don’t like the idea of employers bypassing unemployed Canadian workers.
There is an obvious step that could be taken to improve the program’s accountability. Make the application and decision process transparent. Amazingly, the whole process is now done behind closed doors. We heard about the RBC situation because workers went to the media. We learned about Denny’s bringing in foreign workers to be cooks (!)–as if no Canadians can make a pancake—when the workers brought a class action for unpaid wages.We heard about the controversy at HD Mining in western Canada a while back involving hundreds of Chinese miners only because unions learned about it and went public. The unions had to go to court to obtain information about the applications. Reporters had to file Freedom of Information requests. HD Mining hurled insults at the unions for the audacity to ask for the information. HD Mining clearly believed the public has no right to know anything about the applications.
It’s time for the government to put an end to this fiasco. Shine a light on the process and open it up to public scrutiny. If the public could read a written decision from an adjudicator explaining what efforts were taken to attract Canadian workers, and the facts surrounding the conclusion that Canadians were not available, then the program would have greater public legitimacy. Decisions could be scrutinized, and those businesses that currently exploit the system would think twice. Transparency here can help improve enforcement and compliance. It’s a simple and obvious step for the government to take. You’re welcome.Questions for Discussion

Should the TFWP be abolished altogether?

If not, should the government introduce a public adjudication process for decisions on granting permits under the program?

What arguments can you make, if any, to justify the existing non-transparent decision-making process?

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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